An applicant searching the US trademark register needs to know more than whether a name appears there. The goods and services attached to a registration also matter. In its January 19, 2017 final rule, the USPTO argued that a register overstating actual commercial use imposes costs and burdens on the public. Additional evidence was its proposed administrative remedy within specified maintenance filings. [2017-02796][2017-00317]

The rule expanded the grounds for requesting information and specimens in section 8 continued-use or excusable-nonuse filings and section 71 use-in-commerce or excusable-nonuse filings. That scope matters for smaller applicants trying to understand the register: it was not a new evidentiary demand for every trademark application, and absence of use was not automatically disqualifying where excusable nonuse was claimed. [2017-02796][2017-00317]

The agency's earlier pilot involved 500 randomly selected registrations with those filings. It reported accepting affidavits for 422 registrations, including acceptances after queried goods or services were deleted. Those acceptances therefore could not establish that every original goods list was accurate. Nor could the pilot be treated as a national fraud census. [2017-02796][2017-00317]

On February 10, the USPTO moved the rule's effective date from February 17 to March 21, 2017. The expanded authority was consequently still prospective. These linked documents explain a mechanism intended to improve the information available to searchers, not a demonstrated saving for applicants or a suspension of all preexisting examination powers. The public benefit remained an agency rationale rather than an observed result. [2017-02796][2017-00317]

Source documents

  1. Changes in Requirements for Affidavits or Declarations of Use, Continued Use, or Excusable Nonuse in Trademark Caseshttps://www.govinfo.gov/content/pkg/FR-2017-02-10/html/2017-02796.htm
  2. Changes in Requirements for Affidavits or Declarations of Use, Continued Use, or Excusable Nonuse in Trademark Caseshttps://www.govinfo.gov/content/pkg/FR-2017-01-19/html/2017-00317.htm